Legalpedia Citation: (2023-04) Legalpedia 87071 (CA)

In the Court of Appeal

AKURE JUDICIAL DIVISION

Thu Apr 6, 2023

Suit Number: CA/AK/31/2023

CORAM

OYEBISI FOLAYEMI OMOLEYE JCA

ABUBAKAR MUAZU LAMIDO JCA

YUSUF ALHAJI BASHIR JCA

PARTIES

INDEPENDENT NATIONAL ELECTORAL COMMISSION

APPELLANTS

1. ACTION DEMOCRATIC PARTY
2. SADIQ ISMAIL KAYODE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant has since 1999 election suppressed the said state constituency by failing to conduct election in the state constituency. Also, by Exhibit A dated 2nd June, 2004, the appellant informed the clerk of the National Assembly of its decision to restore the said constituency. The Appellant claims that the limitation period for any claim against it started counting in 1999 and 2004.

The 1st respondent submitted that the cause of action giving rise to the present suit arose in 2022 when the appellant indicated interest to conduct elections into the suppressed Orolu State Constituency. From the 6th October, 2022 when the publication giving rise to the cause of action was made, the respondent had 14 days to file their action and same was filed on 17th October, 2022 within the time stipulated by Section 285 of the Constitution.

The Respondents also argued that from the reliefs sought by the Respondents, it can be seen that none of the reliefs have any bearing with the suppression of the State constituency. The said constituency was restored since 2004 from Exhibit. A. What is before the Court is the transfer of the candidate of the 2nd Respondent from Orolu state constituency to Boripe/Boluwaduro state constituency. They argued that the grievances arose when the name of the 2nd Respondent was published as contesting under Boripe/Boluwaduro state constituency instead of Orolu state constituency. This occurred on 6th October, 2022 and the cause of action arose on that date.

The trial Court (Federal High Court, Oshogbo Judicial Division) delivered its considered judgment granting all the reliefs of the claimants. Aggrieved by the decision, the Appellant took his grievances to the Court of Appeal.

HELD

Appeal allowed

ISSUES

Ø Preliminary Objection?

Ø Whether the trial Court was vested with the requisite jurisdiction to entertain the suit as constituted?

 

RATIONES DECIDENDI

GROUND OF APPEAL – MEANING OF GROUND OF APPEAL

Generally, a ground of appeal is complaint against the judgment of a lower Court which must show a good cause why the appeal should be heard. A ground of appeal provides a mirror through which an appellate Court takes a look at the appeal and the judgment of the trial Court, they must in essence show good cause why the appeal should be heard. See DAZE V. DAMAH & ORS (2021) LPELR-55166.

Parties are bound by the grounds filed and cannot in arguing appeal go outside the grounds filed. See FMBN V. NDIC (1999) LPELR 1270, AP PLC V. JERRY KOS ENTERPRISES LTD (2013) LPELR-20801 and FASUYI & ORS V. PDP & ORS (2017) LPELR-43462. – Per A. M. Lamido, JCA

JURISDICTION – SITUATIONS WHERE OBJECTION TO JURISDICTION OF A COURT CAN BE RAISED

I have gone through the record of appeal, the grounds of appeal raised and the objection of the respondents, but it should be noted that an objection to the jurisdiction of a Court can be raised in any of the following situation: (a) on the strength of the statement of claim or affidavit in support; (b) on the basis of evidence received; (c) by a motion supported by affidavit setting out the facts reached on; (d) on the face of writ of summons where appropriate, as to capacity in which the action was brought or against whom the action was brought; and (e) by the judgment of the trial Court. SeeA. G. KWARA STATE V. OLAWALE (1993) 1 NWLR (PT. 272) 645, NDIC V. CBN (2002) 7 NWLR (PT.766) 272, ARJAY LTD V. AIRLINE MANAGEMENT SUPPORT LTD. (2003) 2 SCNJ 148 and NNONYE V. ANYICHIE (2005) 2 NWLR (PT. 910) 623. Thus, a party can genuinely raise a jurisdictional issue in any of the five situation listed above. It is therefore right for the appellant to raise the issue of Courts jurisdiction to hear and determine the originating summons in the manner he had.– Per A. M. Lamido, JCA

JURISDICTION – WHEN THE ISSUE OF JURISDICTION CAN BE RAISED – ISSUE OF LIMITATION IS VIEWED AS A JURISDICTIONAL ISSUE

On the second ground of objection that the issue of limitation of action was raised for the first time on appeal without seeking for leave, it should be noted that the validity or otherwise of this argument rests on the nature or status of the statute barred action. It is proper for a party to an appeal to raise the issue of jurisdiction without obtaining the leave of the appellate Court. The issue of jurisdiction being fundamental can be raised at any stage of proceeding without leave of Court. However, an issue of jurisdiction cannot be raised in a vacuum, there must be material in the proceedings to sustain the argument on jurisdiction. Though the issue of limitation of an action was not raised at the trial but being raised for the first time on appeal to this Court, it is an issue touching on the jurisdiction of the Court and can be raised at any stage of the proceeding with or without leave of Court. See AJAYI V. MILITARY ADMINISTRATOR OF ONDO STATE (1997) 4 NWLR (PT. 504) 237, MAKINDE V. OJEYINKA (1997) 4 NWLR (PT.497) 80, EMIATOR V. OJEINKA (1997) 4 NWLR (PT.631) 362 and UNILORIN V. ADENIRAN (2007) NWLR (PT. 1031) 498. An issue of limitation of action is regarded as a jurisdictional issue and can be raised for the first time on appeal. In ZURU VS FAKAI (2021) LPELR-55051@ 11 IDRIS, JCA held that:

“Even though it is a trite law that an appeal must be against the decision of the trial Court, the nature of jurisdiction is so distinct that it does not matter whether it was out of the many issues canvassed at the lower Court. All that is needed is that there is a competent ground of appeal bordering on the issue of jurisdiction.”

Also in MOHAMMED V. FRN (2018) 13 (PT.1636) 229 @ 249; Kekere-Ekun, JSC held that:

“The issue of jurisdiction is fundamental and goes to the root of the Court that lacks jurisdiction, any steps taken in the proceedings, including the judgment no matter how erudite could be an exercise in futility for the proceeding are a nullity and liable to be set aside. It is for this reason that the issue of jurisdiction may be raised at any stage of the proceedings and even for the first on appeal at the Supreme Court, prior leave is not required to raise an issue of jurisdiction.”

Lastly in AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (SUPRA) @ 254, it was held that;

“The issue of whether or not an action has been statute-barred is one touching upon the jurisdiction of the Court. For once, an action has been found to be statute barred, although a plaintiff may still have his cause of action, his right of action, that is his legal right to prosecute that action has been taken away by statute.”

Now, one of issues canvassed in the appeal relates to the limitation of action, which is a jurisdictional issue, the fact that it does not form the ratio decidendi in the trial Courts judgment does not preclude a party from raising same in so far as there are facts in the originating summons pointing towards that. A ground of appeal on the issue cannot be said to be incompetent for the simple reason that the issue was not raised at the trial and the trial Court did not rule on it. The appellant also need no leave of Court to raise the issue. – Per A. M. Lamido, JCA

 

JURISDICTION – MEANING OF, AND CONDITIONS FOR DETERMINING JURISDICTION

Jurisdiction is the competence of a Court to hear and determine a dispute before it. MOBIL PRODUCTION(NIG) LTD V. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS (2002) 14 SCM 167, MUSACONI LTD V. ASPINALL (2013) 14 NWLR (PT. 372) 435 AND SANI V. ISYAKU RABIU & SONS LTD & ANOR (2022) LPELR-57479.

The issue of jurisdiction is so radical and a crucial aspect of the competence of a Court, for where a Court lacks same the whole proceeding is a nullity however well conducted and brilliantly decided as the effect is not intrinsic but rather extrinsic to adjudication. See SULE V. NIGERIAN COTTON BOARD (1992) 2 NWLR (PT 45) 17, SHITTA-BEY V. AG FEDERATION & ANOR (1998) LPELR 3055, AG KWARA STATE & ANOR V. ADEYEMO & ORS (2016) LPELR-41147 and ABDULHAMID V. KOLO (2021) LPELR-55463.

The issue of jurisdiction is a threshold issue and when raised, the Court must first of all deal with it before taking any step in the matter, where a Court determines a matter without jurisdiction, the proceeding and judgment would be a nullity and an exercise in futility. In AG ANAMBRA STATE V. AG FEDERATION (2007) ALL FWLR (PT. 379) 1219 @ 1280; Muhammad, JSC Stated that:

“Jurisdiction is said to be the authority a Court has to decide matters before it. In fact, jurisdiction is the blood that gives life to the survival of an action in a Court of law without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it would be an exercise in futility.”

Also in FHA V. KALEJAIYE (2010) 19 NWLR (PT.1226) 142 @ 164 Rhode-Vivour, JSC held that:

“The issue of jurisdiction is fundamental in that where a Court has no jurisdiction to hear and determine a claim and it proceeds to hear the claim, the entire proceedings and judgment would be an exercise in futility, a waste of precious judicial time and a nullity.”

In the ascertainment of whether a suit or action is properly constituted thereby giving the Court jurisdiction to hear and determine a matter, certain conditions must be satisfied in that: –

1. the Court must be properly constituted as regards number and qualification of the numbers of the bench and no member is disqualified for one reason or another.

1. the subject matter of the case is within its jurisdiction and there is no feature in the case which presents the Court for exercising its jurisdiction; and

iii. the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.

See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 AND OYEGUN V. NZERIBE (2010) ALL FWLR (PT. 516) 425. – Per A. M. Lamido, JCA

 

STATUTE BARRED – MEANING OF STATUTE BARRED

An action is said to be statute barred when the party suing brings his action beyond the period laid down by the limitation law. See ARAKA V. EJEAGWU (2000) 12 SC (PT. 1) 99 AND UNIPORT ORS V. JOHN (2019) LPELR-49056. Where an action is statute barred, a plaintiff or claimant who might have had a cause of action loses the right of enforcement of such cause of action or claim in a Court of law as a result of the expiration of the prescribed period. See EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649, UBA LTD V. ABIMBOLA & CO (1995) 9 NWLR (PT. 591) 572.

In the determination of whether an action is statute barred or not, the Court will look at the processes filed by the plaintiff/claimant to discern the time of accrual of cause of action and the time of instituting the action. In EREGBOWA & ANOR V. OBANOR & ORS (2010) LPELR-8964@37-38, AUGIE, JCA (as he then was) held that:

“It is well settled that in determining whether a cause of action is statute-barred or not, the crucial consideration is when the cause of action arose, and the period of limitation is determined by looking at the writ of summons and statement of claim alleging when the wrong was committed that gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.”

See ADEKOYA V. FHA (2008) 11 NWLR (PT 1099) 539 and OMOMEJI V. KOLAWOLE (2008) 14 NWLR (PT 1096) 180.

In an action where it is contended that the suit is caught up with the limitation law, the cause of action and date of its accrual should be taken into consideration.– Per A. M. Lamido, JCA

 

CAUSE OF ACTION – MEANING OF CAUSE OF ACTION

What then is a cause of action? A cause of action is the fact which establishes or gives rise to a right of action; that is the factual situation that gave rise to a judicial relief. In BELLO V. AG OYO STATE (1986) LPELR 764@81, KARIBI-WHIYTE, JSC explained what a cause of action is in the following way:

“…a cause of action is constituted by the bundle or aggregate of facts which the law will be recognised as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other word, the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim.

See THOMAS V. OLUFOSOYE (1986) LPELR 3237, EGBE V. ADEFARASIN (1987) LPELR 1032, TUKUR V. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 112) 517 AND UBA PLC V. ABDULLAHI (2003) 3 NWLR (PT 807) 359. – Per A. M. Lamido, JCA

 

LIMITATION OF ACTION – WHEN ISSUE OF LIMITATION OF ACTION CAN BE RAISED

The issue of limitation of action was not raised at the trial Court, so it is a new issue raised only on appeal to this Court for the first time. The 1st Respondent argued by filing a list of additional authorities that the issue of limitation of action as an issue of law must be raised at the trial Court before same can be validly raided on appeal or at least, the appellant must seek leave to appeal. I think this contention does not represent the current position of the law on the issue of limitation of action. Granted there are authorities tending to show that the limitation of action must be pleaded and raised by evidence at the trial. However, the recent judicial trend shows otherwise.

The issue of limitation of action have been considered as a threshold issue of jurisdiction and is thus too important to be circumscribed or limited to pleadings of parties. The appellant cannot therefore be limited to specific pleadings or even the rules of practice and procedure. In AJAYI V. ADEBIYI (2013) 3 WRNI, Adekeye, JSC, held that:

“Limitation law and locus standi are both threshold issues which can be raised any time/or for the first in the Court of Appeal or in the Supreme Court, it is not limited to being raised as a special defence and pleading them specifically as required by the rules of Court.”

See UNIPORT V. JOHN (SUPRA), NUC V. UYO (2022) LPELR-58199 AND ABUH V. THE PROVOST, KOGI STATE COLLEGE OF EDUCATION ANKPA & ORS (2023) LPELR-59615. –Per A. M. Lamido, JCA

 

PUBLIC OFFICER – LIMITATION OF AN ACTION AGAINST A PUBLIC OFFICER

The Public Officer’s Protection Act stipulates time frame within which an action against a public officer can be commenced Section 2 (1) (a) of the Act provides that:

“2(1) Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provision shall have effect:

(a) Limitation of action – the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in a case of continuance of damage or injury within three months next after the ceasing thereof:

Provided that in the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

By the above provision, an action against a public officer in respect of any act done in pursuance or execution of any Act or Law of public duty or default on same can only be commenced within three months next after the act, neglect or default complained of save in a case of continuing damage or injury in which the aggrieved individual must institute the action within three months next after the cessation of the damage or injury complained of. See EGBE V. ADEFARASIN (NO.1) (1985) 1 NWLR (PT. 3) 549, EGBE V. YUSUF (1992) 1 NWLR (PT.245) 1, EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649 and ONADEKO V. UBN Plc (2005) 4 NWLR (PT. 916) 4401.

It is clear that the respondent action, whatever colouration they choose to give it is as a result of the suppressing of that constituency by the appellant, a fact they are well aware of. The mere fact that they filed their nomination papers to represent the said constituency is of no moment. What gave rise to their action is the suppression of the Orolu State constituency and nothing more and having been aware of that fact, they ought to challenge the suppression as far as 2017 when the 1st respondent was registered or came into existence and failing to do that till 2022, it seems that their action is caught up by the provision of Section 2(a) of the Public Officers Protection Act. This is the gist of the decision of the Supreme Court in INEC V. OGBADIBO LOCAL GOVT. (Supra), where OGBUAGU, JSC @ 39 was very explicit where he stated that:-

“Since the suit was filed clearly outside the period of three months from the date of accrual of cause of action, the suit is statute-barred as no legal proceeding can be validly or properly instituted after that period. The Court is divested of its jurisdiction in the matter as it is no longer a live issue. It is dead in substance and in form.”

See HASSAN V. ALIYU (2010)17 NWLR (PT.1223) 547, NASIR V. CSC, KANO STATE (2010) 2 MJSC 1 and SYLVA V. INEC (2015) 16 NWLR (PT. 1486) 576.

It is clear that having come into existence in the year 2017 when it was registered as a political party, having been aware of the suppression of the said Orolu State constituency in 1999 and 2004 respectively by the depositions in their affidavit in support, the 1st respondent time begins to run from 2017 when it came into existence. Filing the originating summons in October, 2022 clearly offend the provision of the Public Officers Protection Act. – Per A. M. Lamido, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act 2022

Public Officers Protection Act

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